extensively in depicting and arguing their respective positions regarding the underlying facts and events and their implications pertaining to recognizable risks of harm. Sun River vigorously contested Drames' version of the facts, asserting that there was no loud or unusual noise nor any reason from the circumstances (Drames' position and work environment) for Drames or the crew to perceive any risk of danger from a falling chandelier spreader.
III. STANDARD OF REVIEW
A "new trial may be granted to all or any of the parties of the issues . . . in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States . . . ." Fed. R. Civ. P. 59(a). Three grounds for granting a motion for new trial have been recognized:
(1) manifest error of law; (2) manifest error of fact; and
(3) newly discovered evidence. See Step-Saver Data Systems, Inc. v. Wyse Technology, 752 F. Supp. 181, 185 (E.D. Pa. 1990) (citing 6A Moore, Lucas & Grother, Moore's Federal Practice P 59.07, at 59-73 (2d ed. 1984); Thomas v. E.J. Korvette, Inc., 476 F.2d 471, 474-75 (3d Cir. 1973)), aff'd in part and rev'd in part on other grounds, 939 F.2d 91 (3d Cir. 1991). The decision of whether to grant a new trial rests within the sound discretion of the trial judge, whose duty it is to ensure that the verdict does not result in a miscarriage of justice. See Gutzan v. Altair Airlines, Inc., 766 F.2d 135, 140 (3d Cir. 1985); Step-Saver, 752 F. Supp. at 184. With this standard in mind, I will now address Drames' claims of error.
IV. ASSIGNED LEGAL ERRORS
A. Submission of Zone of Danger Issue to the Jury
Based upon the jury's finding that Drames was outside the zone of danger created by defendant's conduct (Special Interrogatory No. 3), I determined that Sun River owed no duty to Drames within the factual context of this case and molded a verdict in favor of Sun River on the issue of liability. Drames argues that the mere submission of the "zone of danger" question to the jury was error because this question is exclusively for the Court to determine as a matter of law. The legal issue decided by me of whether Sun River owed a duty to Drames turned in part upon a sensitive analysis and determination of contested facts and varying inferences decided by the jury. Such allocation of functions between Court and jury was appropriate.
In negligence actions brought under the LHWCA, the 1972 amendments to this statute place the burden upon longshoremen to prove negligence on the part of the owner or operator of the ship under tort standards comparable to land based tort standards, which are to evolve as a matter of federal common law. See Scindia, 451 U.S. at 164-66. In fleshing out these LHWCA tort principles, federal courts have looked to the Restatement (Second) of Torts (1965) (the "Restatement") for guidance. See Scindia, 451 U.S. at 174 n.21; Kirsch v. Prekookeanska Plovidba, 971 F.2d 1026, 1031-33 (3d Cir. 1992).
The Restatement requires as an element of a cause of action for negligence that the plaintiff establish that he was owed a legal duty by defendant. See Restatement § 281. To determine whether defendant owed a legal duty to plaintiff, plaintiff must have been within the foreseeable zone of danger created by defendant's conduct. See Palsgraf, 248 N.Y. at 339, 162 N.E. at 99; Restatement § 281 comment c & illustration 1 ("In order for the actor to be negligent with respect to the other, his conduct must create a recognizable risk of harm to the other individually, or to a class of persons . . . of which the other is a member.").
The Palsgraf or zone of danger issue is a part of the element of legal duty under the Restatement. See Restatement § 281(b) & comments a, c. The concept of zone of danger articulated in Palsgraf is a settled part of the law in most jurisdictions and needs no further elaboration. See Dahlstrom v. Shrum, 368 Pa. 423, 425-27, 84 A.2d 289, 291 (1951); Carson v. City of Philadelphia, 133 Pa. Commw. 74, 80, 574 A.2d 1184, 1187 (1990); 3 Harper, James & Gray, The Law of Torts § 18.2, at 654-71 (2d ed. 1986).
The Palsgraf zone of danger analysis has also been applied to maritime tort cases, and I see no reason why it should not be applied in cases brought under the LHWCA. See Diamond State Tel. Co., 205 F.2d at 402. In Diamond State Tel. Co., supra, Circuit Judge Hastie stated the following:
The Court reaches its result by applying the familiar Palsgraf doctrine to maritime tort. I too would apply the Palsgraf doctrine to maritime causes. Indeed, the Eugene F. Moran 1909, 212 U.S. 466, 29 S. Ct. 339, 53 L. Ed. 600, seems to require that this be done. But that doctrine leads me to a different result in this case.
In the Palsgraf case itself Chief Judge Cardozo thus explained the conception limiting actionable negligence: